Editorial of November 2016

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Unveiling the meaning of freedom of religion in the workplace

Two preliminary proceedings are currently pending before the Court of Justice of the European Union (ECJ) concerning the question of religious expression at work. In both cases, Achbita (C-157/15), originated in Belgium, and Bougnaoui (C-188/15), originated in France, the ECJ is called upon to rule on a highly sensitive issue – the wearing of Islamic headscarves (and not the full veil) in the workplace. The questions are fundamentally the following: is a private employer allowed to prohibit a female employee of Muslim faith from wearing a headscarf in the workplace?; is the dismissal of an employee who refuses to comply with such rules restricting the wearing of religious symbols at work unlawful?

It is the first time that the ECJ is called upon to address such questions. In the meantime, both AG Kokott (in Achbita) and AG Sharpston (in Bougnaoui) have rendered their opinions. The issues raised in both cases require the interpretation of the concept of ‘discrimination on the grounds of religion or belief’ within the meaning of the Anti-Discrimination Directive – the Directive 2000/78[i]. Both Advocates General concluded that a ban, such as those at issue in the main proceedings, could be regarded as indirect discrimination: the rules in question, although apparently neutral, were likely to put individuals of certain religions or beliefs at a particular disadvantage by comparison with other employees. Such discrimination may nevertheless be permitted if i) objectively justified by a legitimate aim, such as the interest of the employer’s business to enforce a policy of religious and ideological neutrality, and ii) so far as the principle of proportionality is observed (Article 2/2/b of Directive 2000/78).

However, the Advocates General disagree as to whether such a ban could be found as constituting direct discrimination (Article 2/2/a of Directive 2000/78). According to AG Kokott, a ban such as that at issue in Achbita could not be regarded as direct discrimination based on religion: a company rule prohibiting the wearing of visible signs of religious, political or philosophical beliefs, only creates a difference of treatment between employees who wish to give active expression to a particular belief and their colleagues who do not feel the same need. Thus, Ms Achbita had not been treated less favourably than another person on account of religion directly and specifically. On the contrary, AG Sharpston firstly concluded that Ms Bougnaoui’s dismissal amounted to direct discrimination against her on the basis of her religion as the right to manifest one’s religion is to be understood as an intrinsic part of the right to freedom of religion enshrined in both Article 9 of the European Convention of Human Rights (ECHR) and Article 10 of the Charter of Fundamental Rights of the European Union (CFREU). The distinction between direct and indirect discrimination is relevant as their possible justifications are different. In her analysis, AG Sharpston concluded that neither Article 4(1) of Directive 2000/78, nor any of the other derogations from the prohibition of direct discrimination on grounds of religion which that directive lays down, applied.

The distinct approaches proposed by the Advocates General denote the sensitive nature of the matter in question. Moreover, the relevant provisions of EU law should, in this particular, also be envisaged in a context of interconstitutionality, i.e., taking into account the coexistence of different rules and standards of protection relating to freedom of religion resulting from the CFREU, the ECHR and the Member States’ constitutions.

In particular, the ECtHR has held certain restrictions on freedom of religious clothing as justified on grounds of safety and public order, due mainly to the need for recognition / face identification of Muslim women. According to the Strasbourg Court, the general ban on the wearing in public places of apparel designed to conceal the face (full veil) would not contravene the ECHR having account of the legitimate aim pursued and the margin of appreciation left to the Contracting States on the matter. Such restriction to the exercise of the right to freedom of religion is therefore considered justified in the light of the principles of secularism and gender equality. The ECtHR has thus recognised a permanent interference with the exercise of the right to freedom of religion in the context of the general ban on the wearing of the full veil in public – and the ECJ would hardly disagree with the ECtHR in this regard.

More controversial in light of EU law would be the ban on the wearing of symbols or signals of religious identification (including clothing, in case the headscarf) in public establishments. Here, it is important to distinguish between a ban imposed on public-sector employees – that could be justified by the need to preserve the religious neutrality of the State and to prevent undue pressure on the freedom of religion of users of public services – and a ban imposed on the users of public services themselves, such as the ban to wear the Islamic headscarf on university premises in Turkey and in primary and secondary schools in France, which, as we know, the ECtHR considered compatible with the ECHR[ii].

However, the balance ought to be different in the sphere of private-sector employment – such is the case in both Achbita and Bougnaoui. Being at issue disputes between private parties, the ECJ may depart from the ECtHR case-law. Additionally, both cases raise the question of the respect for fundamental rights as guaranteed by EU law upon private parties – a matter which is not peaceful among the domestic laws of several Member States, although fundamental rights may acquire horizontal effect in some areas through infraconstitutional regulation of certain private relations. The CFREU only provides for the vertical effect of its provisions in Article 51(1) – that is, its binding nature in relations between those who exercise public power within the EU and private parties –, excluding its application to relations between private parties, whether individuals or legal persons.

Surpassed the issue of the application of the CFREU to disputes between private parties, proportionality would ultimately be the decisive criterion for the reconciliation of legally relevant interests in cases related to the wearing of the Islamic headscarf. If one compares Article 9 ECHR with Article 10 CFREU, one finds that, unlike the first, the second provision seems silent on the matter of restrictions to the exercise of freedom of religion. The matter is, however, is addressed in Article 52(1) CFREU which lays down a general clause restricting the exercise of fundamental rights – and the following three paragraphs adjust said general clause to restrictions on the exercise of fundamental rights as provided for in the Treaties, the ECHR and resulting from the constitutional traditions common to the Member States.

It is not hard to predict the difficulty in ensuring uniformity in the application of EU law in a matter as conducive to divergence as that of freedom of religion. Last summer is one such example, having been characterized, among others, by the controversial ban on the use of the burkini enacted in French beaches in about 30 localities as constituting an ostensible manifestation of belonging to a particular religious confession – and the decision of the French Conseil d’État dating from August that held such a ban as a serious and manifest attempt to fundamental freedoms that are «the freedom of movement, the freedom of conscience and personal freedom.»[iii] Added to this the demagogic association, fuelled by some sectors of European public opinion, between the Islamic religion and terrorist attacks that both Belgian and French alike were recently victims of – in this regard, it should be noted that the French high administrative court did not consider that the emotion and the concerns resulting from terrorist attacks, particularly those that occurred on July 14 in Nice, would be sufficient justification for the contested ban. It is not difficult to predict the impact that the decisions of the ECJ in the Achbita and Bougnaoui cases will have when much is at stake in the legal-political board of the European integration.

[i] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000, p. 16-22.

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